Pacific McGeorge School of Law
Pacific McGeorge Scholarly Commons
Scholarly articles
Faculty Scholarship
2010
Beyond International Water Law: Successfully
Negotiating Mutual Gains Agreements for
International Watercourses
Alex Grzybowski
Pacific Resolutions in Victoria, Canada, and the United Nations Mediation Support Unit in New York
Stephen C. McCaffrey
Pacific McGeorge School of Law
Richard K. Paisley
University of British Columbia
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22 Pac. McGeorge Global Bus. & Dev. L.J. 139
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Beyond International Water Law: Successfully Negotiating
Mutual Gains Agreements for International Watercourses*
Alex Grzybowski, Stephen C, McCaffrey and Richard K. Paisley**
ABSTRACT
Water, energy, and agricultural issues are often found inextricably linked in
the more than 260 international watercourses in the world. International water
law provides an important foundation from which agreements regarding the
conservation and management of international watercourses can be successfully
negotiated. A mutual gains approach towards successfully negotiating
agreements for international watercourses is presented and illustrated by various
examples. The approach is a process model, based on experimental findings and
hundreds of real-world cases, that facilitates negotiating better outcomes while
protecting relationships and reputation. A central tenet of the approach, and the
robust theory that underlies it, is that a vast majority of negotiations in the real
world involve parties who have more than one goal or concern in mind and more
than one issue that can be addressed in the agreement they reach. The approach
allows parties to improve their chances of creating an agreement superior to
existing alternatives. Application of the approach in an international watercourse
context moves beyond merely meeting international legal rights and obligations.
I. INTRODUCTION
Water, energy, and agricultural issues are often found inextricably linked in
the more than 260 international watercourses and countless international aquifers
which cross the political boundaries of two or more countries. Water for
agriculture is so fundamental that the term "water" is often used to indicate
arrangements necessary to support agriculture, as in the first water agreements
negotiated some 5000 years ago. Water for energy includes water for hydropower
and biofuels, both of which increase with the demand for energy generally. Water
* This article is part of a Symposium issue containing papers originating in a conference entitled,
"Critical Intersections for Energy & Water Law: Exploring New Challenges and Opportunities." The
Conference, which was held in Calgary, Alberta, May 20-21, 2009, was co-sponsored by the University of
Calgary Faculty of Law, the Pacific McGeorge Institute for Sustainable Development, and the UNESCO Centre
for Water Law, Policy, and Science, University of Dundee. Additional papers from this conference can be found
elsewhere in this Symposium issue as well as in a companion volume to be published by the International Bar
Association in the Journal of Energy & Natural Resources Law.
** Alex Grzybowski is with Pacific Resolutions in Victoria, Canada, and the United Nations Mediation
Support Unit in New York, Stephen C. McCaffrey is with the McGeorge School of Law, University of the
Pacific in Sacramento, California and Richard K. Paisley is with the University of British Columbia in
Vancouver, Canada. This paper is based in part on presentations by Professors McCaffrey and Paisley at a
Symposium at the University of Calgary, Faculty of Law, in Calgary, Alberta, Canada in the Spring of 2009.
The authors are grateful to John Shurts for his helpful comments on an earlier draft and to Maaria Curlier and
Kate Neville for their support and encouragement.
2010 /Beyond InternationalWater Law
for energy may also have environmental and social impacts. For example,
hydropower production and transmission may conflict with food production that
utilizes energy. Energy for water includes the pumping of water for extraction
and conveying uphill and over what can be very long distances. Energy for water
also includes energy for desalinization-a particularly energy-intensive process and energy for wastewater treatment.' According to Tony Allan, a recognized
expert in the field, "[i]f water and energy are available as free or very
cheap
2
goods then they are used in ways that seriously hurt the collective good.,
As demand for water and energy rise, so will the importance of paying
attention to protecting social and environmental values, which often fall victim to
hurried efforts to produce water and energy. This is particularly true in relation to
international watercourses.
II. INTERNATIONAL WATERCOURSES AND INTERNATIONAL LAW
International watercourses cover 45.3% of the land surface of the earth, are
relied upon by about 40% of the world's
population, and account for
3
flows.
river
global
of
80%
approximately
International watercourses have certain characteristics that make their
conservation and management particularly challenging, the most notable of
which is the tendency for regional politics to regularly exacerbate the already
difficult task of understanding and managing complex natural systems.4 The law
governing international watercourses will take either of two general forms: treaty
law or customary international law.5
If the states sharing an international freshwater resource are not parties to an
applicable treaty, their rights and obligations are governed by customary
international law.6 Currently, the best known multilateral international water law
agreement is the 1997 United Nations Convention on the Law of the Non1. Interview with Scott Slater, Partner, Hatch & Parent, Sacramento, Cal. (Feb. 17, 2009) (on file with
Stephen C. McCaffrey) (each day, the Hyperion Treatment Plant sends an amount of water the equivalent of the
USA's fifth largest river into the ocean). See also City of Los Angeles Stormwater Program, Hyperion
Treatment Plant, http://www.lastormwater.org/siteorg/general/hypernI.htm (last visited Dec. 23, 2009).
2. John Anthony Allan, Distinguished Guest Lecturer at the Royal Society of Chemistry, Lecture at the
University of Saskatchewan: Water and Energy: Three Weddings and Avoiding Two Funerals (Sept. 10, 2009).
3. Aaron T. Wolf, Jeffrey A. Natharius, Jeffrey J. Danielson, Brian S. Ward & Jan K. Pender,
International River Basins of the World, 15 INT'L J. OF WATER RES. DEV., 387, 392 (1999); STEPHEN C.
MCCAFFREY, THE LAW OF INTERNATIONAL WATERCOURSES 16 (2nd ed. 2007).
4. James Kraska, Sustainable Dev. is Security: The Role of Transboundary River Agreements as
Confidence Building Measure (CBM) in South Asia, 28 YALE J. INT'L L. 465, 490 (2003) (competition over
freshwater resources often exacerbates international tension).
5. Richard Kyle Paisley & Timothy L. McDaniels, International Water Law, Acceptable Pollution Risk
and the Tatshenshini River, 35 NAT. RES. J. 111, 117-118 (1995) (international treaty law consists of explicit
agreements between international bodies while customary international law consists of the practices of
international bodies that are relatively uniform, generally accepted and enforced by a relevant community of
states). See generally MCCAFFREY, supra note 3, at 16.
6. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 2 (7th ed. 2008).
Global Business & Development Law Journal/ Vol. 22
Navigational Uses of International Watercourses. Although not yet in force, this
Convention is generally regarded as reflecting the fundamental rules of
customary international law applicable in the field.7 Other key international
agreements include the 1992 United Nations Economic Commission for Europe's
Convention on the Protection and Use of Transboundary Watercourses and
International Lakes,' and the historically important 1966 Helsinki Rules and
associated commentary.9
There are several rules of international law of a general and fundamental
nature that govern the conduct of states in relation to international watercourses. 10
The most basic of these are the following:
" States are to use an international watercourse in a way that is
"equitable and reasonable"" vis-a-vis other states sharing the
watercourse.
* States are to take "all appropriate measures"1 2 to prevent causing
"significant harm" '"to co-riparian states.
*
States are to "consult" '4 with the other international watercourse
states and provide prior, "timely notification"' 5 about any new use or
change in an existing use of an international watercourse that could
have significant adverse effects on co-riparian states, along with
relevant technical information.
There is no rule of international law concerning the use of international
watercourses more fundamental than that of equitable and reasonable
utilization. 6 In the Gabdkovo-Nagymaros Project case the International Court
7. United Nations: Convention on the Law of the Non-Navigational Uses of International Watercourses,
opened for signature May 21, 1997, 36 I.L.M. 700 (not yet in force) [hereinafter UN Watercourses
Convention]. See MCCAFFREY, supra note 3, at 375-77.
8. The Convention on the Protection and Use of Transboundary Watercourses and International Lakes,
March 17, 1992, available at http://www.unece.org/env/water/pdf/watercon.pdf (the UNECE Water
Convention, which was adopted in Helsinki in 1992 shortly before the Rio conference and entered into force in
1996, provides a legal framework for regional cooperation on shared water resources like rivers, lakes, and
groundwaters).
9. International Law Association, Helsinki Rules on the Uses of the Waters of International Rivers, 52
Int'l L. Ass'n Rep. Conf. 484, (Aug. 1966), available at http://webworld.unesco.org/water/wwap/pccp/cd/
pdf/educational tools/course modules/referencedocuments/internationalregionconventions/helsinkirules.pdf
[hereinafter Helsinki Rules].
10. See MCCAFFREY, supra note 3, at 375-77; see also RICHARD KYLE PAISLEY, INTERNATIONAL
WATERCOURSES
/ RIVER BASINS INCLUDING LAW, NEGOTIATION, CONFLICr RESOLUTION AND SIMULATION
TRAINING EXERCISES (2008).
11.
12.
13.
14.
15.
16.
UN Watercourses Convention, supra note 7, at art. S.
Id. at art. 7(l).
Id.
fd. at art. 11.
Id. at art. 12.
See Richard Paisley, Adversaries Into Partners:International Water Law and the Equitable Sharing
2010 /Beyond InternationalWater Law
referred to a riparian state's "basic right to an equitable and reasonable sharing of
the resources of an international watercourse."' 7 This rule requires each riparian
state to ensure, in an ongoing manner, that its use is equitable and reasonable visA-vis other riparian states. What is equitable and reasonable in any given case
may be determined only by taking into account all relevant factors and
circumstances-both natural (e.g. climate, hydrography) and human-related (e.g.
social and economic needs of the riparian states, effects of uses in one state on
co-riparians, existing and potential uses).'8
Another fundamental rule of international watercourse law is that one state
should not cause "significant harm" to another.' 9 This principle has been
recognized in several important decisions in international cases. 20 However, the
application of the principle to international watercourses can be controversial. 2'
While it is clear that one state may not intentionally cause harm to another
through, for example, flooding or deliberate releases of toxic pollution, questions
are sometimes raised about whether one state's use that reduces the available
supply in another state is prohibited by this norm. The better view is that the
latter situation is governed first and foremost by the principle of equitable
utilization: if harm is caused through a pattern of utilization that is otherwise
equitable and reasonable, it should not be prohibited.22
Although it has been controversial in the past, today there is little doubt that
customary international law also requires a state planning a new use to provide
notice thereof to other states that the use might adversely affect. This rule applies
to all projects (including both new uses and changes in existing uses) that have
the potential to change the regime of the watercourse in a way that would be
prejudicial to other riparian states. More recently, it has been recognized that
adverse legal effects should also be covered by the rule-for example, if a large
downstream project could foreclose, or at least curtail the extent of, future uses in
an upstream state by altering the equitable balance of uses and making
downstream uses more susceptible to being harmed by new projects upstream,
then notice should be given.23
of Downstream Benefits, 3 MELB. J. OF INT'L L. 280, 283 (2003); and MCCAFFREY, supra note 3, at 365-67.
17. Gabefkovo-Nagymaros Project (Hung. v Slovk.), 1997 I.C.J. 7, 54 (Sept. 26).
18. MCCAFFREY, supra note 3, at 363, 384-405.
19. UN Watercourses Convention, supra note 7, at art. 7(l).
20. See, e.g., GabcYovo-Nagymaros Project (Hung. v Slovk.), 1997 I.C.J. 7 (Sept. 26).
21. See Paisley, Adversaries, supra note 16, at283 n.10. See generally MCCAFFREY, supra note 3.
22. Paisley, Adversaries, supra note 16, at 283 n. 10; MCCAFFREY, supra note 3, at 365-67, 436.
23. This possibility is recognized by WORLD BANK, OPERATIONAL MANUAL, OP 7.50 - PROJECTS ON
INTERNATIONAL WATERWAYS, OPERATIONAL POLICIES (2009), available at http://www.worldbank.org; see
generally MCCAFFREY, supra note 3, at 407.
Global Business & Development Law Journal/ Vol. 22
III. A MUTUAL GAINS APPROACH TO NEGOTIATING INTERNATIONAL
WATERCOURSE AGREEMENTS24
The fundamental tenets of international water law described above provide
an overall basis for transboundary water use and management between states.25
Beyond customary international legal obligations lie treaties and other
agreements that are negotiated between states in an effort to address particular
watercourse management issues, to clarify how customary obligations will be
met, and in some cases to jointly develop opportunities that neither state could
fully capitalize on if acting independently. It is this latter type of circumstance the opportunity for mutual gain through cooperation-that arguably provides the
most powerful, positive and sustainable incentives to cooperate.26
The Mutual Gains Approach to negotiation is a process model, based on
experimental findings and hundreds of real-world cases, that lays out various
steps for negotiating better outcomes, often including equitable sharing of
benefits, while protecting relationships and reputation. A central tenet of the
model, and the robust theory that underlies it, is that a vast majority of
negotiations in the real world involve parties who have more than one goal or
concern in mind and more than one issue that can be addressed in the agreement
they reach. The model allows parties to improve their chances of creating an
agreement superior to existing alternatives.
When states identify and develop opportunities with reciprocal sharing of
benefits, they position themselves to sustain their agreements on the basis of the
ongoing benefits from doing so. Rather than simply reflecting the legal principles
summarized above-avoiding significant harm, sharing in a reasonable and
equitable manner, providing timely notification of changes and developmentsopportunities for mutual gain expand the potential rewards associated with
cooperation. Mutual gains arrangements shed a whole new light on the
implications of cooperation. The focus of negotiation can shift away from
limiting impacts on sovereignty, to planning and devising ways and means of
maximizing benefits.
24. Mutual Gains bargaining is an approach to collective bargaining intended to reach win-win
outcomes for the negotiating parties. Instead of the traditional adversarial (win-lose) approach (aka positional
bargaining), the mutual gains approach is similar to that first described by Roger Fisher (in his book Getting to
YES), where the goal is to reach a sustainable agreement that all parties in a multi-party negotiation can live
with and support.
25. See McCaffrey, supra note 3.
26. See Shlomi Dinar, Power Asymmetry and Negotiations in iternationalRiver Basins, 14 INT'L
NEGOTIATION 329 (2009) (stating that, "Cooperation, in general, materializes when both states, but particularly
the stronger state, realize that benefits can accrue from coordination and joint action. In other words, to harness
the river in an efficient manner, cooperation must ensue and the downstream state's participation is important.
Even when the benefits to cooperation are not clear, i.e. when the upstream riparian does not foresee immediate
economic incentives to cooperation, coordination may still be attained through the manipulation of incentives
(or strategic interaction) .... "); see also Neda A. Zawahri & Andrea K. Gerlak, Navigating InternationalRiver
Disputes to Avert Conflict, 14 INT'L NEGOTIATION 211 (2009).
2010/Beyond InternationalWater Law
Contrast the following hypothetical-but not unrealistic-negotiation
scenarios where the focus shifts from limiting impacts on sovereignty ("Narrow")
to seeking opportunities for mutual gain ("Open")).
Scenario # 1:
A "Narrow" negotiation bogs down in trying to grapple with the definitions
section of a treaty where country A is seeking to limit the definition of
"tributary" in an international watercourse to first order streams. The underlying
interest of A is to reduce explicit obligations to consult with riparian neighbors B
and C regarding significant hydropower developments that A is planning on
secondary and tertiary tributaries. This position flies in the face of the general
principles of both integrated water resources management and international law,
which apply to the entire watercourse system. B and C protest that the proposed
approach makes no sense from a technical watershed management, or
international legal, perspective and eventually discussions and negotiations get to
the real issues, which are related to the extent to which consultation obligations
create unnecessary transaction costs, requirements to adjust plans in response to
legitimate concerns regarding harm, or in a subtle manner, establish a veto for
other states. All of this dialogue is set in a context of uneasy suspicion about
hidden motives and concern about the political implications of appearing to
sacrifice independence to neighboring states. After considerable time and
expense, compromises are eventually reached, and obligations are set out that are
not dissimilar to the customary international legal obligations, and more
practically speaking, with the requirements of international funding institutions
from which financing may be required.
Scenario # 2:
An "Open" negotiation starts by recognizing that international legal
obligations are what they are, and that time and effort should be spent exploring
potential opportunities for mutual gain through cooperative development of water
resources. Country A has considerable potential for hydropower production and
water storage. Country B has untapped agricultural potential that requires
irrigation and a favorable flow regime. It also lies between A and international
markets for electricity, and is committed to shifting away from coal fired
generation plants as a source of domestic energy supply. It needs a source of
cleaner, cheaper electricity and A may be able to provide it. Country C needs
flood control in order to develop agricultural and tourism opportunities on a delta
downstream from A, as well as more energy for domestic and industrial use.
Country representatives from A, B, and C engage in extensive technical
discussions of alternative scenarios that attempt to maximize benefits for all
countries through hydropower development, energy transmission and trade, flow
regime management, and agricultural trade. These discussions require explicit
Global Business & Development Law Journal/ Vol. 22
commitment that ideas and information are exchanged on a "without prejudice"
and confidential basis in order to create opportunities to safely consider a wide
range of options without implying any commitments. Country representatives
dispense with excessive formalities and collaboratively define potential
opportunities. If it turns out that there are no opportunities for mutual gain
through cooperation (a highly unlikely prospect) then the fall-back is a simple
acknowledgement of international legal principles. After considerable
negotiation, fueled by detailed analysis of various options, an agreement is
reached that involves joint investment in infrastructure needed to facilitate
development opportunities that would not be possible without cooperation. A
develops hydropower facilities and sells electricity to B and C. B and C get flow
regime commitments needed to facilitate development of agricultural and
opportunities in the delta. B sells transmission rights through its territory to A. As
in the "Narrow" scenario, the negotiations take time and money to complete but
the resulting stream of benefits associated with the final agreement is quite
different.
The contrasts between these scenarios are obvious. If co-riparians are not
going to get beyond what is already customary international law, then why bother
negotiating a transboundary water agreement? It is not as if treaty obligations are
backed up by strong enforcement provisions. Consider how few international
water disputes have actually found their way to the International Court of Justice,
recognizing of course that this requires the agreement of all states concerned,
either as part of the treaty (a very rare occurrence), or at the time of the dispute
(an even rarer occurrence).
Having articulated this criticism, there is a persuasive argument to be made
that such "basic" treaties do create a foundation and institutional structures that
foster good relationships and make meeting international legal obligations easier
to achieve.
Basic treaties can also attract considerable investment by international
funding organizations with the consequential economic benefits from expenditure
of those investments-some of which are on projects that result in sustainable
developments on the ground. While these may be the benefits of a "Narrow" type
approach to treaty negotiation, it is notable that co-riparians that pursue and
actually implement an "Open" approach can achieve all of these benefits set
within the context of economic returns that are sustained by the developments
facilitated through the treaty which may have been impossible to achieve acting
independently or through a "Narrow" negotiation. In this circumstance, good
relations are founded in, and reinforced by, mutual gain, and the institutional
arrangements are sustained by the desire to maintain the stream of benefits
created by the associated developments. This is very different than commitments
to do what customary international law and International Financial Institution
("IFI") rules already require with institutional arrangements that are funded by
external sources that are unlikely to be sustained over the long term.
2010/Beyond InternationalWater Law
Closely related to the "Narrow" and "Open" scenarios are very different
approaches to negotiation that alternately make the process awkward and
inefficient with respect to finding solutions, or make it constructive and creative.
The first approach is Positional and lacks coordinated and impartial
administrative, technical, legal and mediation support. In contrast, the second
approach is Interest-based, and has coordinated and impartial administrative,
technical, legal and mediation support. The Positional approach suffers from all
of the inefficiencies associated with applying positional negotiations in a context
where it is relatively easy to miss opportunities for mutual gain because the
underlying interests and their synergies are not well understood. The parties are
focused on maintaining positions rather than exploring alternatives that may
integrate their respective interests. If administrative support is viewed as biased,
the negotiation platform itself can become tangled up in the negotiation, as
parties bring process issues to the negotiating table while substantive issues are
being addressed. If technical and legal advice are not provided through an
impartial mechanism that ensures transparent understanding of conflicting
perspectives, then the negotiation can be diverted into a dialogue or conflict
between experts as opposed to focusing on how well national interests are being
addressed. Finally, if mediation and facilitation support is either separated from
these other functions, or nonexistent, then the opportunities for these resources to
maximize the potential for productive outcomes are hard to deliver.
An Interest-based approach is significantly different. Administrative,
technical, legal, and mediation support is coordinated, and process design issues
are worked through and agreed upon separately from substantive matters. The
process is designed to maximize opportunities for safe and constructive
discussion of alternatives that may deliver valuable outcomes for all riparian
parties. Technical and legal advice is provided in response to issues raised
through investigation of alternative solutions. They are not driving the
discussion; they are supporting it. Mediation support provides the capacity to
both manage the process for success for all parties, and to investigate alternatives
where direct discussions may be difficult or impossible.
In summary, if the process is interest based and well supported, then time is
spent on constructive problem solving and relationship building, rather than on
unproductive exchanges of positions and negotiation tactics that have little or no
relationship to the mutually beneficial opportunities that may well exist.
In practice, there are a growing number of Open type international
agreements, which provide for the return, either in kind or in cash, of an
equitable share of the benefits resulting from cooperation. Some examples are
described below.
(1) The Treaty of Versailles, 1919; Article 358 of the Treaty of
Versailles, 1919, gave France the exclusive right to use the waters of
Global Business & Development Law Journal/ Vol. 22
the Rhine for power production, subject to France paying Germany
one-half the value of the energy produced.
(2) The Barcelona Convention, 1921; The Barcelona Convention, 1921,
Article X, contains the idea of sharing downstream and even
upstream benefits, providing that where a state is obliged under the
Convention to take steps to improve the river or is put to expense to
maintain it for navigation, it is entitled to demand a reasonable
contribution to the costs involved 8
(3) The Kunene River Agreement (South Africa and Portugal)1926; The
agreement between South Africa and Portugal, regulating the use of
the waters of the Kunene River, gave South Africa the right to build
a dam upstream in Angola and certain diversion works. Article XII
further provided as follows:
No charge shall be made for the water diverted from the Kunene
River for the purpose of providing means of subsistence for the
Native Tribes in the Mandated Territory; but should it be desired
to utilise a portion of the water referred to in Article six above
[one half of the flood water of the river] for any other purposes,
being for purposes of gain, ... South Africa ... shall pay, for
such portion of the water so utilised, to... [Portugal] such
29
compensation as may be mutually agreed upon.
(4) The Cunene River Basin Agreement (South Africa and Portugal),
1969; A more recent treaty between Portugal and South Africa for
the Kunene River (under the name of the Cunene River), sees one
watercourse state paying another for benefits received by it as a
result of developments of the watercourse in the other state. Under
this agreement Portugal was to construct the Gove dam and South
Africa agreed to participate in the financing of the dam in respect of
components forming part of the storage function, but excluding costs
incurred for hydro-power generation purely in the interest of the
Portuguese government. In return, Portugal agreed not to extract
more than fifty percent of the resulting regulated flow of the river,
and to operate the dam so as to provide a regulated flow.3" The treaty
27. Treaty of Peace Between the Allied and Associated Powers of Germany, June 28, 1919, 3 U.S.T.
3714, [hereinafter Treaty of Versailles].
28. Convention and Statute on the Regime of Navigable Waterways of International Concern, Apr. 20,
1921, 7 L.N.T.S. 35 [hereinafter Barcelona Convention].
29. Agreement Between the Government of the Republic of South Africa and the Government of the
Republic of Portugal Regulating the Use of the Waters of the Kunene River for the Purposes of Generating
Hydraulic Power and of Inundation and Irrigation in the Mandated Territory of South West Africa, Port.-S. Afr.,
July 1, 1926, 70 L.N.T.S. 316 [hereinafter Kunene River Agreement].
30. Agreement between the Government of the Republic of South Africa and the Government of
2010 /Beyond InternationalWater Law
also provided for the construction and operation of works for the
diversion by means of pumping water from the Cunene River for
human (including irrigation) and animal requirements in southwest
Africa. South Africa agreed to pay for the construction and operation
of the works, which would be done by the Portuguese authorities;
South Africa was also to pay a fixed amount for the ground occupied
and for the flooding caused by these works.3
(5) The Rhine Chlorides Agreement, 1977; The Rhine Chlorides
agreement provides that the Netherlands is to pay a substantial share
of the cost to France of disposing of waste salts from the Mines de
Potasse d'Alsace in ways other than discharging them into the Rhine.
Thus, in this example the downstream state pays the upstream state
for the conferral of a benefit (freedom from pollution harm).32
(6) The Lesotho Highlands ProjectTreaty, 1986; The Lesotho Highlands
Project Treaty is a treaty pursuant to which the downstream state,
South Africa, was to pay a substantial share of the cost of
constructing the project in Lesotho in return
for the downstream
33
benefits it would receive from the project.
(7) Gabdkovo-Nagymaros Treaty (Czechoslovakia (Slovakia) and
Hungary), 1977; The 1977 Treaty between Czechoslovakia (now
Slovakia) and Hungary which gave rise to the 1997 Gabeikovo Nagymaros ICJ case provided for the development of a series of
dams and a hydroelectric plant, chiefly on a stretch of the Danube
that forms the border between the two countries. Under the Treaty,
this project was to produce the bulk of the electricity on a bypass
canal wholly within what is now Slovakia. The majority of Danube
water is diverted into that canal then rejoins the bed of the Danube.
Under the Treaty, Hungary was to receive power from that plant as
well as flood control and navigation benefits; all, at least in part,
downstream benefits.34
Portugal in Regard to the First Phase of Development of the Water Resources of the Kunene River Basin, Port.S. Afr., arts. 4.1.11, 4.1.12, Jan. 21, 1969, LEX-FAOC015963, available at http://faolex.fao.org/docs/texts/
saf15963.doc.
31. id. at arts. 4.2.6.9, 4.2.8.
32. Convention on the Protection of the Rhine Against Pollution by Chlorides, Dec. 3, 1976, 16 l.L.M.
265 [hereinafter Rhine Chlorides Agreement].
33. Treaty on the Lesotho Highlands Water Project Between the Government of the Kingdom of
Lesotho and the Government of the Republic of South Africa, Lesotho-S. Afr., Oct. 24, 1986, available at
http://www.fao.org/docrep/w7414b/w7414b0w.htm.
34. See GabdtTcovo-Nagymaros Project, supra note 20, at 18; for an analysis of the case see
MCCAFFREY, supra note 3, at 210-2 1.
Global Business & Development Law Journal/ Vol. 22
IV. DETAILED INTERNATIONAL EXPERIENCES
A. The Columbia River Basin35
The widely acknowledged situation with regard to the equitable sharing of
downstream benefits in relation to the Columbia River aptly illustrates both the
existence, and the practical application, of a mutual gains approach leading to the
equitable sharing of downstream benefits.36
The Columbia River is shared between Canada and the United States and is
governed by the Columbia River Treaty.37 The Treaty explicitly recognizes that
the construction and operation of three Treaty projects upstream in Canada
increases both the useable energy and dependable capacity of power plants
downstream in the United States, as well as providing irrigation and flood control
benefits in the United States. All of these would not be possible at the same cost
without the three Treaty projects in Canada.38
In return for building the three Treaty projects in Canada, the Treaty entitled
Canada to a lump sum payment for irrigation and flood control benefits, as well
as one half of the additional power generated by power plants in the United
States that resulted from storage across the border in Canada. '9
There are three basic principles which govern the apportionment of power
benefits under the Treaty, as well as the responsibility for the costs associated
with production of those benefits:
1. the power benefits generated as a result of the cooperative
development of Canada and the United States are to be shared on a
substantially equal basis, provided that an equal division will result
in an advantage to each country as compared with the alternatives
available to it;
2. when an equal division of power benefits will not result in an
advantage to each country, the countries must then negotiate and
agree upon such other division of benefits as will be equitable to
both countries and make cooperative development feasible; and
35.
See LEONARD ORTOLANO ET AL., WORLD COMM'N ON DAMS, GRAND COULEE DAM AND THE
COLUMBIA BASIN PROJECT
USA (2000);
NIGEL BANKES, THE COLUMBIA BASIN AND THE COLUMBIA RIVER
Nwcouncil.org, Columbia River: Description,
Creation,and Discovery, http://www.nwcouncil.org/history/ColumbiaRiver.asp (last visited Dec. 23, 2009).
36. Treaty Between Canada and the United States of America Relating to Cooperative Development of
the Water Resources of the Columbia River Basin, U.S.-Can., Jan. 17, 1961, 542 U.N.T.S. 244 (1964).
37. Id.
TREATY: CANADIAN PERSPECTIVES IN THE 1990S (1996);
38.
Id.
39.
Id..
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3. each country is to bear all capital and operating costs for facilities it
will provide in its own territory to carry out the cooperative
development mandated by the Treaty.
According to Sanderson:
These deceptively simple principles contain considerable wisdom, a
wisdom that I believe helps explain the Treaty's success in delivering the
value that the Partieshoped it would in 1960. The principles effectively
balance the theoreticalpotential of internationalcooperation on the one
hand and the need to serve sovereign ambitions on the other....
The practical affect of the principles was to cause each nation to
determine the benefits it believed were attainablethrough cooperation.A
bi-national structure was then developed to provide a mechanism to
create those benefits. The principles provided that the benefits would
normally be divided 50/50 and each party would bear its own costs. This
benefit sharingformula would be adjusted if the normal approach did
not provide a benefit to one of the Partiesequal to or greater than what
it thought it could obtain acting unilaterally.
The great attractionof this approach was and is that it focuses on gross
benefits and eliminates the need for each country to calculate net
benefits. It recognizes that determining what the net benefits and costs of
a particular project might be in a way that is acceptable to both
countries will often be impossible. The wisdom of finessing the need for
the Parties to agree on valuing intangible attributes such as species at
risk or reconciliation with First Nations is amply demonstrated by the
difficulty the entities had in agreeing to the quantification of the CE
spelled out in the Treaty. By allowing each Party to assess its own
benefits and costs, the Treaty provides a solution which recognizes this
limitation and leaves both countries to seize opportunities that make
them better off than they would have otherwise been according to their
own values and thus in a position to enthusiastically support whatever
initiative is being undertaken.
Put simply, the power of the principles which gave rise to the sharing of
benefits under the Treaty lies in the fact that those principles recognize
the benefits in one country, and the costs in the other, without requiring
a comparison of the two. Rather, they permit the development of a
framework which facilitates a negotiation process that recognizes the
Global Business & Development Law Journal/ Vol. 22
legitimacy of the concerns in each country, and introduces a formula
which will enable both countries to reap benefits from the development.40
B.
The Nile River Basin
The Nile is a paradigmatic example of how the upstream-downstream
dynamic can produce a zero-sum game in the absence of benefit-sharing. The
Nile Basin spans portions of the territories of ten countries: Burundi, the
Democratic Republic of Congo, Egypt, Eritrea, Ethiopia, Kenya, Rwanda, Sudan,
Tanzania and Uganda. It is said to be the longest river in the world, flowing some
4,000 miles from its source in the Lake Victoria basin to the Mediterranean Sea.
But this is only one branch of the great river, the White Nile. The other branch is
the Blue Nile, which flows from Lake Tana, in the Ethiopian highlands, through
a deep gorge to Khartoum where it joins the White Nile to form the Nile proper.
The flow of the Blue Nile is around twice that of the White Nile and is
characterized by seasonal torrents, accounting for the historic Nile floods and
associated flood-recession agriculture in Egypt.
Egypt contributes virtually no water to the Nile and is almost entirely
dependent upon it. It therefore decided to capture the flow of the Nile behind the
Aswan High Dam (Sadd el Aali Dam), completed in 1970, in the Lake Nasser
4
reservoir, with a storage capacity of about twice the Nile's average annual flow. '
Egypt uses this water for both irrigation and hydroelectric power production, but
suffers losses of some fifteen percent of the reservoir's water from evaporation.42
Early British studies had concluded that storage in the upper basin would offer a
technically preferable solution, 43 but for Egypt the massive dam and reservoir
symbolized its post-World War II nationalism and were considered necessary to
Egypt's water security in view of the country's dependence on the Nile.
As is typical throughout the world, Egypt, the ultimate downstream state on
the Nile, developed its water resources far earlier, by thousands of years, than
any of the upstream riparians. Egypt's use of Nile water is so intensive that little
actually flows into the Mediterranean Sea. This has led Egyptian leaders to
threaten military action against Ethiopia if that country "touch[es] the waters of
the Nile."" Thus the zero-sum game: whatever Ethiopia (or, theoretically,
upstream states on the White Nile) uses, Egypt loses. Ethiopia has emphasized
that it has a right to utilize Nile waters in a manner that is equitable and
reasonable vis-A-vis Sudan and Egypt. Indeed, equitable utilization theoretically
40.
Chris Sanderson, Partner at Lawson and Lundell LLP, Paper Prepared for Transboundary River
Governance in the Face of Uncertainty: The Columbia River Treaty, 2014: The Columbia River Treaty After
2004 16 (Apr. 2, 2009).
41.
See generally MCCAFFREY, supra note 3, at 358-61.
42.
43.
Id.
See, e.g, SIR WILLIAM GARSTIN. REPORT UPON THE BASIN OF THE UPPER NILE 194-95 (1904).
44.
ROBERT 0. COLLINS, THE NILE 214 (2002) (quoting Anwar el-Sadat). See also JOHN WATERBURY,
THE NILE BASIN 71, 83 (2002).
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avoids the harm to an upper riparian state that would result from locking in
quantities used historically by a lower riparian. This is, however, of little comfort
to Egypt, which continues to develop Nile water resources,45 utilizing virtually all
of the water that enters her territory. Egypt tends to rely more heavily on the "noharm" principle as support for its argument that it is entitled to the same quantity
of Nile water it has used historically and is currently using.46
It is apparent that reconciling Egypt's insistence on continuing to receive
present quantities with Ethiopia's development plans cannot be accomplished
through apportionment of water alone. The two countries have therefore been
discussing possibilities for benefit-sharing within the framework of the Nile
Basin Initiative (NBI), a development program supported by the World Bank and
various bilateral donors.'
In 2002, Nile Basin states established the NBI as an international
organization with its headquarters in Entebbe, Uganda. Nile Basin countries
developed a Benefit Sharing Framework at a meeting in June 2009 and Egypt,
Ethiopia, and Sudan continue to work on identification of benefit-sharing
projects relating to their sub-basin through the Eastern Nile Subsidiary Action
Program, one of two Investment Programs under the umbrella of the NBI. An
example of these projects is the Eastern Nile Regional Power Trade Investment
Program, whose objective is: "[t]o promote regional power trade through
coordinated planning and development of power projects and transmission
interconnection in the context of multi-purpose water resources development. 48
As with the basin as a whole, major investment in the Eastern Nile will have to
await approval of the Nile Basin Cooperative Framework Agreement, the first
basin-wide treaty governing the Nile, on which the riparian states have been
working since the late 1990s. At their meeting in Alexandria, 27-28 July 2009,
the Nile Council of Ministers in charge of water affairs decided to allow a period
of six months for the conclusion of an inclusive Cooperative Framework
Agreement-i.e., one that is participated in by all nine Nile Basin states that have
taken part in the negotiations. 49 It is hoped that these final negotiations will meet
with success.
45. The development is on the "Peace Canal," under the Suez Canal to the Sinai, and the "New Valley"
or Toshka project, which pumps water from Lake Nasser west to the desert. See WATERBURY, supra note 44, at
70-71, 84.
46. Egypt also relies on a 1929 treaty with Great Britain which it says is now binding on the Nile
riparian states that were British colonies at the time, including Sudan, Kenya, Tanzania and Uganda. See
MCCAFFREY, supra note 3, at 265. The latter three states contest this assertion; the relations between Egypt and
Sudan are governed by the Agreement between the United Arab Republic and the Republic of Sudan for the
Full Utilization of Nile Waters, Nov. 8, 1959, 453 U.N.T.S. 51.
47. See generally Nile Basin Initiative, Nile Basin Initiative, http://www.nilebasin.org/ (last visited Dec.
23, 2009).
48. Nile Basin Initiative Subsidiary Action Program, ENSAP-Eastern Nile Regional Power Trade
Investment Program (2009), http://ensap.nilebasin.org/index.php?ltemid=127&id=41&option=comcontent&
task=view.
49. Nile Basin Initiative, 17th Nile Council of Ministers in Chargeof WaterAffairs Reaffirm Basin-Wide
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C. The Senegal River Basin
The management of the Senegal River offers a unique example of benefit
sharing between the riparian states. The river rises in Guinea and drains portions
of that country, Mali, Mauritania, and Senegal. The most recent agreement
concluded by the riparians is the 2002 Senegal Water Charter, 0 which responded
to problems created by the construction of two dams pursuant to earlier
agreements. These are the Manantali hydroelectric dam in Mali, completed in
1988, and the Diama saltwater intrusion barrier, near the mouth of the river
where it forms the border between Mauritania and Senegal, completed in 1986."
The dams had given rise to a number of problems in the downstream portion
of the basin, including the degradation of ecosystems, the elimination of
traditional flood-recession agriculture, and a variety of public health problems
(including malaria, diarrhea, and schistosomiasis (bilharzia) 2 In adopting the
Senegal River Water Charter, the riparians made the decision to alter the flow
regime to mimic natural, pre-dam conditions to some extent, by creating artificial
floods through releases from the Manantali Dam.53 While this was done at the
cost of some hydropower, benefits were gained by the amelioration, and possible
elimination, of the conditions that gave rise to the problems that had beset the
lower Senegal. This cooperative solution was made possible in part by the fact
that the works constructed on the Senegal are jointly owned, pursuant to a 1978
treaty. The Water Charter seeks to allocate water equitably among the different
sectors, chiefly agriculture, fishing, navigation, and power production. It also
contains the following innovative provision, one of a number of progressive
features of the agreement: "The guiding principles of any distribution of the
River's water will guarantee to the populations of the riparian States the full
enjoyment of the resource, with respect for the safety of the people and the
works, as well as the basic human right to clean water, in the perspective of
sustainable development."55
Cooperation (2009), http:/lwww.nilebasin.org/index.php?option=comcontent&task=view&id=137&ltemid=
70. Eritrea is the one Nile Basin state that has not participated in the negotiations. It participates in meetings of
the Council of Ministers as an observer. Id.
50. Charte des Eaux du Fleuve Shngal [Senegal River Water Charter], 18 May 2002, OMVS Resolution
005, art. 24, available at http://bd.stp.gov.ml/padelia/pdf/CHARTEDESEAUXDUFLEUVESENEGAL.pdf. For
a discussion of the earlier treaties concerning the Senegal River Basin, see Margaret J. Vick, The Senegal River
Basin: A Retrospective and Prospective Look at the Legal Regime, 46 NAT. RES. J. 211 (2006).
51. Vick, supra note 50, at 216.
52. See Int'l Dev. Ass'n, World Bank, Regional Cooperation and Benefit Sharing in the Senegal River
Basin, available at http://siteresources.worldbank.org/EXTWAT/Resources/SenegalRiverBain-Feature_
Story.pdf (last visited Dec. 23, 2009); MCCAFFREY, supra note 3, at 274.
53. Int'l Dev. Ass'n, supra note 52.
54. Convention Relative au Statut Juridique des Ouvrages Communs [Convention concerning the Legal
Status of Jointly-Owned Structures], Dec. 12, 1978, available at http://faolex.fao.org/docs/texts/mull6005.doc;
supplemented by the Convention Relative aux Financements des Ouvrages Communs (Convention concerning
the Financing of Jointly-Owned Structures), Mar. 12, 1982).
55. Senegal River Water Charter, supra note 50, at art. 4.
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This provision of the Water Charter brings the focus back to the people who
are affected by the large projects on the river. It clearly signals the intent of the
parties to remedy the unforeseen problems mentioned earlier. It is especially
interesting that the provision invokes the human right to water, the first time a
treaty concerning international watercourses has done so.
V. CONCLUSION
International water law provides an important foundation from which
agreements regarding the conservation and management of international
watercourses can be successfully negotiated. However, there is much to be said
for applying a "mutual gains" approach towards negotiating mutually beneficial
agreements for international watercourses, often including equitable sharing of
benefits, which move beyond merely meeting international legal rights and
obligations. In support of such an approach, a number of case studies have been
presented including more detailed analysis of the Columbia, Nile, and Senegal
international river basins.
Why are there not more of these types of agreements given the obvious
benefits they appear to provide? One reason for this is that states are often more
concerned with how they can protect and maintain their independence and
sovereignty than they are with how they may be able to cooperate to maximize
mutual benefits. This starts negotiations off in a narrow context with negotiators
that have strict instructions "not to give anything away while supporting and
maintaining good relations." Another reason for the lack of open type
negotiations is the absence of independent and coordinated institutional support.
Institutional support is often provided by international funding organizations as
part of a project of the organization for which an agreement is a deliverable. This
can create a challenging dynamic within the process as those that are responsible
for providing institutional support struggle to maintain neutrality while also
delivering an agreement. This can undermine co-riparian confidence that the
process will support them whether or not they choose to agree. It is only in recent
years that the UN has begun to develop a more systematic mediation support
service for transboundary water negotiations and this is still in its very early
stages.16 Also, while the theory of value creation that underpins a mutual gains
approach appears to be easily recognized and understood by participants across
various cultures, it is often less clear that the communication strategies that also
underpin the approach, and which can vary in significant ways across cultures
because of different social norms that govern individual and organization
behavior, are as transferable.
56. See Press Release, United Nations, United Nations Announces New "On-Call" Mediation Team
(Mar. 5, 2008), availableat http://www.un.org/News/Press/docs/2008/pa I.doc.htm.